The Constituent and Instrumental Role of Human Rights in Development Policy: A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states

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(1)European University Institute Department of Law. The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states. Orla Sheehy. Thesis submitted with a view to obtaining the degree of Doctor of Laws of the European University Institute. Florence, May 2006 1.

(2) European University Institute Department of Law. The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states. Orla Sheehy. Examining Board Members:. Prof. Bruno De Witte Prof. Marise Cremona Prof. Joseph McMahon Prof. Gordon Crawford. (Supervisor, European University Institute, Italy) (European University Institute, Italy) (University College Dublin, Ireland) (University of Leeds, UK). Florence, May 2006. 2. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute DOI: 10.2870/13421.

(3) TABLE OF CONTENTS Acknowledgements……………………………………………………………………..11 List of Abbreviations ...................................................................................................... 12 INTRODUCTION: THE CONSTITUENT AND INSTRUMENTAL ROLE OF HUMAN RIGHTS IN DEVELOPMENT. A CASE STUDY OF EUROPEAN UNION (EU) RELATIONS WITH THE GROUP OF AFRICAN, CARIBBEAN AND PACIFIC (ACP) STATES .................................................................................... 17 1. Introduction .............................................................................................................. 17 1.1.. Development..................................................................................................................................18. 1.2.. Human Rights ................................................................................................................................19. 1.3.. The Gradual Convergence of Human Rights and Development ....................................................23. 1.4. Contextualising EU Development Cooperation Policy within the Nexus between Development and Human Rights .....................................................................................................................................26. 2. Aim of this Thesis and Research Questions ........................................................... 30 3. Methodology ............................................................................................................. 35 4. Literature Review ..................................................................................................... 36 5. Overview of this Thesis ............................................................................................ 40 5.1.. Chapter One: Human Rights in the History of Development ........................................................40. 5.2.. Chapter Two: Human Rights and the Practice of OECD Donors: Key Concepts and Critical. Insights 5.3.. ……………………………………………………………………………………………….42. Chapter Three: The Emergence and Consolidation of Human Rights in EU Development. Cooperation Policy and Relations with the Group of ACP States. ............................................................43 5.4. Chapter Four: The Application of Human Rights in EU-ACP Relations: Human Rights as Instrumental for Development?.....……………………………………………………………………….45 5.5. Chapters Five: The Dynamics of Human Rights in EU-Kenya Cooperation from Lomé to Cotonou ……………………………………………………………………………………………….47 5.6. Chapter Six: Conclusions on the Legacy of Human Rights in International Development Policy and the Experience of EU-ACP Cooperation ............................................................................................50. CHAPTER ONE: HUMAN RIGHTS IN THE HISTORY OF DEVELOPMENT .. 53 1. Introduction .............................................................................................................. 53. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 3 DOI: 10.2870/13421.

(4) 2. The Early Decades of Development Thinking and the Primacy of Economic Growth ............................................................................................................................. 54 2.1.. Modernism and Developmentalism in the Post-World War II Period ...........................................55. 2.2.. The Emergence of Development Aid ............................................................................................56. 2.3.. Questioning the Modernist Agenda ...............................................................................................57. 2.4.. The New International Economic Order ........................................................................................59. 2.5.. Legacy of the 1970s: Basic Needs and the Changing Trends in Development Policy ..................60. 3. The Washington Consensus, Structural Adjustment and Basic Needs ............... 61 3.1.. The World Bank and the International Monetary Fund (IMF) ......................................................62. 3.2.. The Washington Consensus ...........................................................................................................62. 3.3.. Economic Conditionality: Stabilisation and Structural Adjustment Policies.................................63. 3.4.. Structural Adjustment with a Human Face ....................................................................................65. 3.5.. The Economic Impact of Structural Adjustment ...........................................................................67. 4. The United Nations and the Changing Normative Definition of Development .. 68 4.1.. Challenging the Traditional Human Rights/Development Trade-off ............................................68. 4.2.. The Declaration on the Right to Development (1986) ...................................................................69. 4.3.. UNDP and the Human Development Index...................................................................................72. 4.4.. Theoretical Underpinnings of the Human Development Index .....................................................72. 4.4.1.. The Constitutive and Instrumental Role of Human Rights in Development .........................73. 4.4.2.. Additional Variables in Economics .......................................................................................76. 4.5.. The End of the Cold War: Linking Aid and Human Rights Measures ..........................................78. 4.6.. The Legacy of UN‟s Reconceptualisation of Development: Human Rights-Based Methodologies ……………………………………………………………………………………………………80. 5. The Role of Human Rights in the Policies of the International Financial Institutions (IFIs): Good Governance and an Enabling Environment for Growth . 82 5.1.. The IFIs and Human Rights ...........................................................................................................83. 5.2.. An Enabling Environment for Growth ..........................................................................................86. 5.2.1.. Development Compacts and Policy Conditionality ...............................................................88. 5.2.2.. WB/IMF Poverty Reduction Strategy Papers and Human Rights .........................................89. 5.7.. Human Rights and the IFI‟s Good Governance Agenda ...............................................................93. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 4 DOI: 10.2870/13421.

(5) 6. Conclusions on Human Rights in the History of Development ............................ 94 CHAPTER TWO: HUMAN RIGHTS AND THE PRACTICE OF OECD DONORS: KEY CONCEPTS AND CRITICAL INSIGHTS..................................... 98 1. Introduction .............................................................................................................. 98 2. Background to the Emergence of Human Rights in Donor Policies ................... 99 3. Legal Aspects of Human Rights Conditionality .................................................. 102 3.1.. Positive and Negative Conditionality ..........................................................................................102. 3.1.1.. Negative Conditionality .......................................................................................................103. 3.1.2.. Positive Conditionality ........................................................................................................104. 3.2.. Human Rights Conditionality and the Question of Sovereignty ..................................................104. 4. Legal Basis for Donor Support for Human Rights and Related Elements ....... 106 4.1.. Defining Human Rights ...............................................................................................................107. 4.2.. Defining Human Rights within the Wider Context of Political Reform: Democratisation and. Good Governance ....................................................................................................................................113 4.2.1.. Human Rights and Democratisation ....................................................................................113. 4.2.2.. Human Rights and Good Governance .................................................................................118. 4.3.. The Promotion of Human Rights and the Role of Civil Society..................................................123. 5. Critical Insights into Donor Human Rights Conditionality and Measures to Promote Human Rights ................................................................................................ 124 5.1.. The Ad hoc and Fragmented Nature of Negative Conditionality .................................................124. 5.2.. The Practice of Donor Support for Human Rights Activities ......................................................128. 5.2.1. 5.3.. A Bias Towards Civil and Political Rights? ........................................................................129. Embedding Human Rights in Development Policy Frameworks: Mainstreaming and Human. Rights-Based Approaches........................................................................................................................134 5.3.1.. Mainstreaming Human Rights in Development...................................................................134. 5.3.2.. Human Rights-Based Methodologies as a Framework for Donor Policy ............................136. 5.3.3.. Promoting Human Rights within Existing Donor Development Policy Frameworks .........139. 6. Conclusions ............................................................................................................. 142. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 5 DOI: 10.2870/13421.

(6) CHAPTER THREE: THE EMERGENCE AND CONSOLIDATION OF HUMAN RIGHTS IN EU DEVELOPMENT COOPERATION POLICY AND COOPERATION WITH THE GROUP OF AFRICAN, CARIBBEAN AND PACIFIC (ACP) STATES ............................................................................................ 145 1. Introduction ............................................................................................................ 145 2. Legal Basis and Institutional Structure of EU Development Cooperation ....... 147 2.1.. Legal Basis for EU Development Policy .....................................................................................147. 2.2.. Institutions and Actors in EU Development Cooperation Policy ................................................149. 2.2.1.. EU External and Development Aid Instruments..................................................................149. 2.2.2.. EU Institutions and the Management of Development Aid .................................................150. 2.3.. Financial Instruments ..................................................................................................................154. 2.3.1.. EU Budget and EDF ............................................................................................................155. 2.3.2.. Future Financial Perspective 2007-2013 .............................................................................155. 2.4.. The EU Constitutional Treaty ......................................................................................................157. 3. Evolution of Cooperation between the EU and the African, Caribbean and Pacific (ACP) States ...................................................................................................... 160 3.1.. Background to EU-ACP Cooperation..........................................................................................160. 3.2.. Legal basis for EU-ACP cooperation within the EU Legal Order ...............................................164. 3.3.. Management and Coordination of EU-ACP Relations ................................................................166. 3.3.1.. Institutional Management and Actors ..................................................................................166. 3.3.2.. Financial Instruments...........................................................................................................168. 3.4.. Enlargement of the European Union and the ACP Countries ......................................................175. 3.5.. Community Competences in the Sphere of Development Aid ....................................................175. 4. The Emergence of Human Rights in EU-ACP Cooperation .............................. 177 4.1.. Introduction .................................................................................................................................178. 4.2.. Early Trends in EU-ACP Cooperation: Towards Political Conditionality ..................................178. 4.3.. The Introduction of the Human Rights Clause in EU External Relations ...................................179. 4.4.. Human Rights and the Increasingly Political Dimensions of EU Aid .........................................188. 5. The Cotonou Agreement and Changing Trends in EU Development Cooperation Policy .............................................................................................................................. 190. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 6 DOI: 10.2870/13421.

(7) 5.1.. Human Rights and the Cotonou Agreement ................................................................................192. 5.2.. The Changing Nature of Political Conditionality: Good Governance and EU-ACP Relations ...193. 5.2.1. EU Financial Instruments in Third Countries: Sector-wide Approaches, Budget Support and the Primacy of Good Governance........................................................................................................198 5.2.2. The Nexus between the EU and the International Financial Institutions: Poverty Reduction Strategy Papers (PRSPs)......................................................................................................................200 5.2.3. The Cotonou Agreement and the Future of EU Development Policy: „From Uniqueness to Uniformity‟? ........................................................................................................................................202 5.3. A Response to Claims of Uniformity and the Consolidation of Human Rights in EU Development Cooperation Policy and Relations with the ACP States ..........................................................................205. 6. Conclusions ............................................................................................................. 205 CHAPTER FOUR: THE PRACTICAL APPLICATION OF HUMAN RIGHTS IN EU-ACP RELATIONS: HUMAN RIGHTS AS INSTRUMENTAL FOR DEVELOPMENT? ....................................................................................................... 209 1. Introduction ............................................................................................................ 209 2. Legal Basis and Normative Framework for a ‘Positive Approach’ to Human Rights in Development Cooperation and Relations with the ACP Countries ......... 212 2.1.. Legal Basis for a „Positive Approach‟ to Human Rights in EU Development Cooperation Policy …………………………………………………………………………………………………..212. 2.2.. Legal Basis for Human Rights in EU-ACP Relations .................................................................214. 2.2.1.. Legal Basis for a Positive Approach within EU-ACP Human Rights Clause .....................215. 2.3.. Positive Conditionality ................................................................................................................225. 2.4.. Political Dialogue between the EU and ACP countries ...............................................................227. 2.5.. Human Rights and Unilateral Regulations ..................................................................................230. 2.5.1.. Council Regulation (EC) No. 975/1999 ..............................................................................230. 2.5.2.. Background to Council Regulation 975/1999: UK v. Commission .....................................231. 2.5.3.. The Scope of Human Rights in Council Regulation 975/1999 ............................................234. 2.5.4.. Critique of Regulation (EC) 975/1999: Improved Insight into the Normative Framework for. Human Rights Activities in Developing Countries or a Missed Opportunity? ....................................236 2.5.5.. Other Relevant Community Initiatives and Unilateral Regulations.....................................238. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 7 DOI: 10.2870/13421.

(8) 2.6.. Conclusions on the Normative Framework for a „Positive Approach‟ to Human Rights in EU. Development Policy ................................................................................................................................243. 3. The Practical Application of Human Rights within EU-ACP Relations........... 246 3.1.. Human Rights Conditionality in the Practice of EU-ACP Relations ...........................................246. 3.1.1.. Recourse to the Human Rights Clause and Suspension Procedures in EU-ACP Relations .246. 3.1.2.. Analysis of Recourse to the Human Rights Clause .............................................................255. 3.1.3.. Good Governance Conditionality in Practice ......................................................................258. 3.1.4.. Conclusions on the Practical Implementation of Negative Conditionality ..........................259. 3.2.. Political Dialogue within EU-ACP Cooperation .........................................................................263. 3.2.1.. Implementing the EU‟s Positive Approach and Prospects for Political Dialogue ...............264. 3.2.2.. Conclusions on Political Dialogue .......................................................................................268. 3.3.. Measures to Promote Human Rights ...........................................................................................268. 3.3.1.. EU-ACP Cooperation ..........................................................................................................269. 3.3.2.. European Initiative for Democratisation and Human Rights (EIDHR) ...............................278. 3.3.3.. Evaluation of Measures to Promote the „Essential Elements‟ of EU-ACP Partnership.......289. 3.4.. Observations on the Practical Implementation Human Rights in EU-ACP Relations .................292. 3.4.1.. Addressing Potential Internal Incoherence between Normative and Practical Application of. the EU‟s Positive Approach ................................................................................................................292 3.4.2.. Human Rights as Instrumental in the Process of Development? .........................................301. 3.4.3.. Concluding Observations.....................................................................................................310. CHAPTER FIVE: THE DYNAMICS OF HUMAN RIGHTS IN EU-KENYA COOPERATION FROM LOMÉ TO COTONOU ................................................... 312 1. Introduction ............................................................................................................ 312 2. The Origins of EU-Kenya Cooperation ................................................................ 314 2.1.. Association and the Treaty of Rome............................................................................................314. 2.2.. The Yaoundé Conventions ..........................................................................................................315. 2.3.. Kenya and the EEC: The Arusha Convention 1968 ....................................................................315. 2.4.. Kenya and Lomé I (1975-1980) ..................................................................................................319. 2.5.. Lomé II-III: Structural Adjustment and Basic Needs ..................................................................322. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 8 DOI: 10.2870/13421.

(9) 3. Lomé IV and Political Conditionality in Kenya .................................................. 324 3.1.. The End of Cold War and the Quest for Multi-Party Democracy in Kenya ................................324. 3.2.. Donor Conditionality and Political Transition in 1991 ................................................................325. 3.2.1. 3.3.. Lomé IV and the EU‟s Role in 1991 Donor Conditionality ................................................327. Lomé IV-bis (1995-2000) ............................................................................................................329. 3.3.1. The Human Rights Clause and Negative Conditionality .............................................................329. 4. The EU and Kenya in the post-Lomé Era ............................................................ 332 4.1.. The Political Dimensions of the EU-ACP Cotonou Agreement ..................................................332. 4.2.. Shifting Policy Objectives in EU-Kenya Co-operation ...............................................................333. 4.3. The Political Dimensions of Co-operation between the European Commission and the NARC Government .............................................................................................................................................334 4.4.. EU Good Governance Conditionality under Cotonou .................................................................336. 4.4.1. 4.5.. EU Good Governance Conditionality ..................................................................................337. Critiquing EU Good Governance Conditionality ........................................................................339. 5. EU-Kenya Support for Human Rights, Rule of Law and Governance Activities ……………………………………………………………………………………...340 5.1.. EDF Funding ...............................................................................................................................340. 5.1.1.. Governance, Justice, Law and Order Sector (GJLOS) Reform Programme ........................340. 5.1.2.. The European Commission and the GJLOS Programme .....................................................342. 5.1.3.. Democratic Governance Strengthening Programme (DGSP) ..............................................344. 5.1.4.. Civil Society Post-2002 .......................................................................................................346. 5.1.5.. Conclusions on EC Support to Civil Society Organisations post-2002 Elections ...............347. 5.2.. Kenya and the EU Human Rights Budget Line (EIDHR) ...........................................................348. 6. The European Commission in Kenya: Prospects for the Adoption of Human Rights-Based Programming Methodologies and Mainstreaming? .......................... 348 7. Conclusions ............................................................................................................. 350. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 9 DOI: 10.2870/13421.

(10) CHAPTER SIX: CONCLUSIONS ON THE LEGACY OF HUMAN RIGHTS IN DEVELOPMENT POLICY AND PRACTICE AND THE EXPERIENCE OF EU RELATIONS WITH THE GROUP OF ACP STATES............................................ 353 1. Introduction ............................................................................................................ 353 2. The Legacy of Human Rights in International Development Thinking, Policy and Practice ................................................................................................................... 354 3. A Consensus Among OECD Donors on the Role of Human Rights in Development? ................................................................................................................ 363 4. The Nexus between Human Rights and Development: The Experience of EU Development Policy and Relations with the Group of African, Caribbean and Pacific (ACP) States ...................................................................................................... 375 5. The Practical Application of Human Rights in EU-ACP Relations: Evidence of Human Rights as Instrumental for Achieving Development Objectives ................. 387 5.1. The EU‟s Legal and Normative Framework for the Promotion of Human Rights in the ACP States …………………………………………………………………………………………………..388 5.2.. Negative Conditionality ...............................................................................................................391. 5.3.. Good Governance ........................................................................................................................395. 5.4.. Political Dialogue ........................................................................................................................398. 5.5.. Measures to Support Human Rights ............................................................................................400. 5.5.1.. EDF Funding .......................................................................................................................400. 5.5.2.. Unilateral Regulations and Human Rights ..........................................................................403. 5.5.3.. The Future Orientation of EIDHR: Mainstreaming or Standalone? ....................................407. 5.6.. Insights from the Experience of Kenya .......................................................................................409. 6. Conclusion on the Legacy of Human Rights in Development and the Experience of EU-ACP Development Cooperation ....................................................................... 413 Table of Cases................................................................................................................ 416 Table of Treaties and International Instruments ...................................................... 418 Table of EU Law ........................................................................................................... 423 Bibliography .................................................................................................................. 429. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 10 DOI: 10.2870/13421.

(11) Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 11 DOI: 10.2870/13421.

(12) LIST OF ABBREVIATIONS. ACP. African, Caribbean and Pacific. AJIL. American Journal of International Law. AU. African Union. AUSAID. Australian Government Overseas Programme. BMZ. German Federal Ministry for Economic Cooperation and Development. CAP. Common Agricultural Policy. CARDS. EU Assistance to the Western Balkans (Albania, Bosnia and Herzegovina, Croatia, Serbia, Montenegro, former Yugoslav Republic of Macedonia). CARDS CBC. CARDS Cross Border Cooperation. CBO. Community-Based Organisation. CDF. Comprehensive Development Framework. CGD. Centre for Governance and Development (Kenya). CIDA. Canadian International Development Agency. CIS. Commonwealth of Independent States. CLARION. Centre for Law and Research International (Kenya). CMLR. Common Market Law Review. CSO. Civil Society Organisation. CSP. Country Strategy Paper. CSS. Country Support Strategy. DAC. Development Assistance Committee (OECD). DANIDA. Danish International Development Agency. DCECI. Development. Cooperation. and. Economic. Cooperation. Instrument DCI. Development Cooperation Ireland. DFID. Department for International Development (UK). Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 12 DOI: 10.2870/13421.

(13) DG. Directorate General. DP. Democratic Party. DPS. Development Policy Statement. DRC. Democratic Republic of the Congo. EAC. East African Community. EC. European Community. EC Bull.. EC Bulletin. ECHR. European Convention on Human Rights. EC Treaty. European Community Treaty. ECOSOC. Economic and Social Committee. EIDHR. European Initiative for Democratisation and Human Rights. ECR. European Court Reports. EFAR. European Foreign Affairs Review. EJDR. European Journal of Development Research. EJIL. European Journal of International Law. ELJ. European Law Journal. ENPI. European Neighbourhood and Partnership Instrument. EP. European Parliament. EPA. European Partnership Agreement. EPZ. Export Processing Zones. ERBD. European Bank for Reconstruction and Development. ERSWEC. Economic Recovery Strategy for Wealth and Employment Creation. EU. European Union. FMA. Fund Management Agent. FRA. Fundamental Rights Agency. GAERC. General Affairs and External Relations Council. GATT. General Agreement on Tariffs and Trade. GJLOS. Governance, Justice, Law and Order Sector. GNI. Gross National Income. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 13 DOI: 10.2870/13421.

(14) GNP. Gross National Product. GSP. Generalised System of Preferences. GTZ. German Technical Cooperation. Harvard. Hum.. Rts. Harvard Human Rights Yearbook. Ybk. HIPC. Highly Indebted Poor Countries initiative. HL. House of Lords. HRQ. Human Rights Quarterly. ICC. International Criminal Court. ICCPR. International Covenant on Civil and Political Rights. ICESCR. International Covenant on Economic, Social and Cultural Rights. ICLQ. International and Comparative Law Quarterly. IFIs. International Financial Institutions. ILM. International Legal Materials. ILO. International Labour Organisation. IMF. International Monetary Fund. INGO. International Non-Governmental Organisation. IPA. Pre-Accession Instrument. IQSG. Inter-service Quality Support Group. ISPA. Instrument for Structural Policies for Pre-Accession. JCMS. Journal of Common Market Studies. JHA. Justice and Home Affairs. JICA. Japan International Cooperation Agency. KANU. Kenya African National Union. LDCs. Least Developed Countries. LDP. Liberal Democratic Party. LFA. Logical Framework Approach. LFM. Logical Framework Matrix. LSCR. Legal Sector Reform Donor Coordinating Committee. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 14 DOI: 10.2870/13421.

(15) MDGs. Millennium Development Goals. MEDA. Euro-Mediterranean Partnership. MoJCA. Ministry of Justice and Constitutional Affairs (Kenya). NAO. National Authorising Officer. NAK. National Alliance Party of Kenya. NARC. National Rainbow Coalition (Kenya). NDP. National Democratic Party (Kenya). NEPAD. New Partnership for Africa‟s Development. NGO. Non-Governmental Organisation. NILR. Netherlands International Law Review. NIP. National Indicative Plan. NIS. Newly Independent States. NORAD. Norwegian Agency for International Development. NQHR. Netherlands Quarterly Human Rights. NZAID. New Zealand International Aid and Development Agency. OCTs. Overseas Territories and Countries. ODA. Official Development Assistance. ODI. Overseas Development Institute. OECD. Organisation for Economic Cooperation and Development. OHCHR. Office of the High Commissioner for Human Rights. OJ. Official Journal of the European Communities. OSCE-ODIHR. Organisation for Security and Cooperation in Europe - Office for Democratic Institutions and Human Rights. PCM. Project Cycle Management. PHARE. EC Assistance to Accession Countries (Bulgaria, the Czech Republic,. Estonia,. Hungary,. Latvia,. Lithuania,. Poland,. Slovakia, Slovenia and Romania) PHARE CBC. PHARE Cross Border Cooperation. PRSP. Poverty Reduction Strategy Paper. PSC. Political and Security Committee. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 15 DOI: 10.2870/13421.

(16) RIP. Regional Indicative Programme. RSP. Regional Strategy Papers. SAP. Structural Adjustment Policy. SCR. Common Service for External Relations. SDC. Swiss Agency for Development and Cooperation. SIA. Sustainability Impact Assessments. SIDA. Swedish Agency for International Development. STPP. Short Term Priorities Programme (Kenya GJLOS). SWAps. Sector-Wide Approaches. TACIS. EU Technical Assistance to Eastern Europe and Asia. TEU. Treaty on European Union. TI. Transparency International. UDHR. Universal Declaration of Human Rights. UN. United Nations. UNDP. United Nations Development Programme. UNHCHR. United Nations High Commissioner for Human Rights. UNICEF. United Nations Children‟s Fund. UNODC. UN Office on Drugs and Crime. UNTS. United Nations Treaty Series. US. United States. USAID. US Agency for International Development. USSR. Union of Soviet Socialist Republics. Vand. J. Transnat'l L.. Vanderbilt Journal of Transnational Law. VCLT. Vienna Convention on the Law of Treaties. WB. World Bank. WTR. World Trade Review. YBEL. Yearbook of European Law. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 16 DOI: 10.2870/13421.

(17) INTRODUCTION: THE CONSTITUENT AND INSTRUMENTAL ROLE OF HUMAN RIGHTS IN DEVELOPMENT. A CASE STUDY OF EUROPEAN UNION (EU) RELATIONS WITH THE GROUP OF AFRICAN, CARIBBEAN AND PACIFIC (ACP) STATES. 1. Introduction. This thesis explores the impact of international human rights law on the changing trends in international development policy and practice. The subject matter is analysed through a case study of European Union development cooperation policy and its relations with the group of African, Caribbean and Pacific (ACP) states. 1 Whilst there is a burgeoning literature on this subject, known as the „nexus between human rights and development‟,2 the discovery of the convergence or union between human rights and development may have come of some surprise to non-jurists and to those within in the field of development. According to professionals engaged in this domain, development is usually defined and identified with economic growth, trade, capital flows and the transfer of technology. 3 As Johan Galtung argues, both concepts („human rights‟ and „development‟) have evolved in distinct historical contexts, therefore, any connection or compatibility has more to do with Western history and culture than anything else.4 Furthermore, as Sano states, whilst both human rights and development were institutionalised in the global system in the post-World War II climate, both have different roots and have emerged in different contexts.5 In light of these claims, an obvious point of departure should consider what is meant by the terms „development‟ and „human rights‟ and briefly describe the interlinkages between these previously distinct domains. To this end, the idea of a 1. The ACP group is an international organisation by virtue of the Georgetown Agreement on the Organisation of the African, Caribbean and Pacific Group of States, signed on 6th June 1975. This group has negotiated association agreements with the EU since 1975 (then EEC)). The EU-ACP Partnership Agreement (Cotonou Agreement) was signed by seventy-seven ACP States in 2000. [Cotonou Agreement, ACP-EC Partnership Agreement, signed on 23rd June 2000 in Cotonou, Benin, [2000] OJ L 317/3.] In May 2003, East Timor signed the Cotonou Agreement. Cuba joined the ACP group in 2000, however, it has not acceded to the Cotonou Agreement and it is the only ACP country that has not signed this Agreement. Babarinde, O., „The Changing Environment of ACP-EU Relations,‟ p. 17 from Babarinde, O. and Faber, G., (eds.), The European Union and the Developing Countries. The Cotonou Agreement, (Leiden, 2005). 2 Alston, P. and Robinson, M., Human Rights and Development: Towards Mutual Reinforcement, (Oxford, 2005); Uvin, P., Human Rights and Development, (Bloomfield, 2004); Tomaševski, K., Development Aid and Human Rights, (London, 1989); Tomaševski, K., Development Aid and Human Rights Revisited, (London, 1993). 3 Schacter, O., International Law in Theory and Practice, (Dordrecht, 1991), p. 355. 4 Galtung, J., Human Rights in Another Key, (Cambridge, 1994), p. 108. 5 Sano, H.-O., „Development and Human Rights: The Necessary But Partial Integration of Human Rights and Development,‟ 22 HRQ 3 (2000), p. 738.. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 17 DOI: 10.2870/13421.

(18) gradual convergence of human rights and development will be introduced6 and this will be followed by a discussion of where EU development cooperation policy fits into this debate. In the remaining sections of the introductory chapter, the aims of this thesis and research questions will be outlined. A description of the methodology used, literature review and an overview of the chapters will also be presented.. 1.1. Development. Development is a complex process, for which there is no easy definition. It may refer to an individual, societal, economic and sometimes a political process. In reality, development is a contemporary set of values, rather than a clearly defined operation. 7 For the purposes of this thesis, the term „development‟ refers to official development assistance (ODA)8 and by extension, to the policy and practice of OECD donors.9 The background to the global structure for development can be traced to a variety of events, which will be briefly described. Firstly, the emergence of official development assistance is linked to the history of the activities of the colonial powers and their overseas territories.10 One of the earliest examples is the Colonial Development Welfare Act, which was passed by the UK government in 1945.11 Secondly, the institutional structures for development at the international level emerged from the nascent global structures as the Second World War drew to a close. At a meeting convened by forty-four Allied Nations in 1944, the UN Monetary and Financial Conference took place at Bretton Woods, New Hampshire, USA. This led to the establishment of the International Bank for Reconstruction and Development (IBRD), which later became one of the constituent parts of the World Bank and the International Monetary Fund.12 The UN Charter of 1945 pledged “to employ international machinery for the promotion of economic and social. 6. The convergence between human rights and development is explored in more detail in chapter one of this thesis. Henkin, L., The Age of Rights, (New York, 1990), p. 191. 8 Fuhrer, H., The Story of Official Development Assistance, (Paris, 1996), p. 4. 9 In this thesis, the term „donors‟ refers to the members of the Development Assistance Committee (DAC) of the OECD that engage in official development assistance (ODA). These members include the fifteen Member States of the European Union, the European Commission, Australia, New Zealand, Switzerland, Norway, USA, Canada and Japan. For a list of the countries which receive ODA, see DAC List of Aid Recipients, 1st January 2003. Source: http://www.oecd.orgdataoecd35/9/2488552.pdf 10 Fuhrer, op. cit., (1996), p. 4. 11 Previous Acts were passed in 1929 and 1940. Quoted in Fuhrer, op. cit., (1996), p. 4. 12 The World Bank and IMF began operating in 1946. 7. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 18 DOI: 10.2870/13421.

(19) advancement of all peoples.” This commitment was given practical effect through the institutions and programmes that were created under the auspices of the United Nations, such as the Food and Agriculture Organisation (FAO) in 1945, UNICEF and UNESCO in the following year13 and the establishment of the UN Expanded Programme for Technical Assistance in 1949.14 The first use of the term „development‟ or indeed its corollary, „underdevelopment‟, is attributed to President Truman of the US in his inaugural speech in 1949. In Point Four of this speech, President Truman called for attention to be given to underdeveloped countries, inspired by the belief that “we should make available to peaceloving peoples the benefits of our store of technical knowledge in order to help them realize their aspirations for a better life.”15 This became known as the Point Four Programme and was followed by the adoption of the Act for International Development by the US Congress in 1950. Much of the enthusiasm for development assistance was derived from the success of the Marshall Plan, which had assisted in the reconstruction and economic recovery in Europe following World War Two.16 A further rationale for development assistance for the US was the struggle against Communism and the provision of economic support for the countries on the periphery of the Communist bloc was viewed as a means of achieving this aim. The practice of development assistance was institutionalised through the creation of the OECD Development Assistance Committee (DAC) in 1961, which grew from a forum for consultation among aid donors known as the Development Assistance Group.17 In 1969, the DAC defined Official Development Aid (ODA) as certain types of concessional financial resources that contain a grant element.18. 1.2. Human Rights. The concept of human rights is deeply contested. For the purposes of this thesis, the role of human rights in development cooperation necessarily raises questions relating to the 13. In the same year, the International Labour Organisation (ILO) (created in 1919) became a special agency associated with the UN. This was expanded in 1959 through the creation of Special Fund for technical assistance. See Point Four of the Inaugural Address of President Harry S. Truman on 20 th January 1949. 16 This was launched by the US Secretary of State, George C. Marshall, in an address at Harvard University on 5 th June 1947. 17 Fuhrer, op. cit., (1996), p. 8. 18 See http://www.oecd.org/dac 14 15. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 19 DOI: 10.2870/13421.

(20) universal application of human rights and whether they remain vulnerable to charges of cultural imperialism. Within the long-standing debate, traditionally known as cultural relativism versus universalism, human rights have been rejected by some commentators, and declared irrelevant or meaningless in most developing countries that do not have a cultural heritage of individualism.19 Whilst proponents of „universalism‟ counter these claims by arguing that antecedents of human rights can be found in most cultures,20 this thesis does not seek to argue that human rights are absolute, timeless, universal or unchanging values. In contrast, these ideological conflicts can be reconciled by viewing the articulation of human rights law as the result of a historical process.21 Therefore, rather than assessing the conceptual foundations of human rights, the term human rights can be interpreted as those which can be measured in conformity with international law.22 From this perspective, this thesis simply acknowledges the post-1945 triumph of human rights as the language of legitimacy in international affairs and seeks to establish the extent to which human rights have become entwined in development discourse and practice. This perspective – of human rights as the contemporary language of legitimacy – draws from the views of Donnelly, who states that: “…the historical contingency and particularity of human rights is compatible with the conception of human rights as universal rights…” and furthermore, whilst acknowledging the “special connection between human rights and the rise and consolidation of “liberalism” in the modern West…” he argues that this particularity does “not preclude their near-universal applicability in contemporary international society.”23. Human rights can therefore be recognised as a historical product, but also as a concept of universal validity.24 They have been incorporated in regional instruments, including: the European Convention on Human Rights, which was adopted by the Council of Europe in 1950; the European Social Charter 1961 which supplements the European Convention; Khrushalami, Y., „Human Rights in Asia and Africa,‟ p. 331, from Snyder and Sathirathai, op. cit., (1987); See also Pollis, A. and Schwab, P., „Human Rights: A Western Construct With Limited Applicability,‟ from Pollis, A. and Schwab, P., (eds.), Human Rights: Cultural and Ideological Perspectives, (New York, 1980). 20 See An-Na‟im, A.A., and Deng, F.M., (eds.), Human Rights in Africa. Cross-cultural Perspectives, (Washington DC, 1990). 21 Alves, J. A. Lindgren, „The Declaration of Human Rights in Postmodernity,‟ 22 HRQ 2 (2000). 22 See Tomuschat, C., Between Idealism and Realism, (Oxford, 2003); Shute, S., and Hurley, S., (eds.), On Human Rights: Oxford Amnesty Lectures, (New York, 1993). 23 Donnelly, J., Universal Human Rights in Theory and Practice, (2nd ed.), (Ithaca and London, 2003), p. 2. 24 Donnelly, J., „Human Right and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights,‟ p. 355, from Snyder, F.E. and Sathirathai, S., (eds.), Third World Attitudes Toward International Law: An Introduction, (Dordrecht, 1987). 19. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 20 DOI: 10.2870/13421.

(21) the American Convention on Human Rights, adopted by the Organisation of American States in 1969; and the African Charter on Human and Peoples‟ Rights which was adopted by the Organisation of African Unity in 1981. These values received almost universal approval at the Vienna Conference on Human Rights in 1993.25. All human rights are universal, indivisible and interdependent and inter-related. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of all states, regardless of their political, economic and cultural systems, to promote and to protect all human rights and fundamental freedoms.‟26. The essential universality of human rights appears to have political support from developing countries. In the final Declaration at the Vienna World Conference, the African, Latin American and Asian and Pacific States indicated support for the principle of universality.27 This support can be found in their respective regional preparatory meetings. In the Tunis Declaration (November 1992), African States stated that the “the universal nature of human rights is beyond question; their protection and promotion are the duty of all states.” Similarly, the San José Declaration (January 1993) of the Latin American and Caribbean Countries included references to the „universality‟ of human rights as one of the „guiding principles‟ of international human rights. However, the Declaration of the Asian and Pacific States was more cautious and although the universal nature of human rights was recognised in the Bangkok Declaration, it was stated that this should be considered in the context of “various historical, cultural and religious backgrounds.”28. 25. Vienna Declaration and Programme of Action, UN GAOR, World Conference on Human Rights, 48 th Sess., 22nd plen. mtg., part 1, UN Doc. A/CONF.157/24 (1993), reprinted in ILM (1993) 1661. These declarations are quoted in UN, World Conference on Human Rights, Vienna Austria, June 1993: Information Pack, (New York, 1993). 26 Final Declaration of the UN World Conference on Human Rights, Vienna, June 1993, Part II, para 3. 27 Ibid 28 Ibid.. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 21 DOI: 10.2870/13421.

(22) Therefore, whilst recognising that the concept of „human rights‟ is deeply contested, 29 this thesis refers specifically to international human rights law, which was first codified in the Universal Declaration of Human Rights in 1948.30 During the drafting negotiations of this Declaration, the classical Western liberal view of two categories of rights triumphed, despite the „indivisibility‟ and „universality‟ of human rights. 31 „First generation‟ rights comprise of civil and political rights that are now at the core of most human rights treaty regimes. „Second generation‟ rights refer to matters of social and economic significance such as the right to work, the right to an adequate standard of living and the right to education. First and second generation rights are both enshrined in international law through the International Covenant on Civil and Political Rights (1966)32 and the International Covenant on Economic, Social and Cultural Rights (1966),33 respectively. The international machinery for human rights was established in the bodies created under the UN Charter including the Commission on Human Rights and the bodies created under the international human rights treaties.34 In recent decades, there has been growing support for „third generation‟ rights such as the right to development, to a healthy environment and to peace.35 For the advocates of third generation rights, rapid globalisation threatens existing human rights structures, rendering individual States, acting alone, unable to satisfy the obligations imposed by human rights covenants.36 The exponents of third generation rights advocate the need for concerted action on behalf of all the actors on the social scene, such as the State, the individual, public and private firms, and the entire international community.37 This new set of „solidarity‟ rights would firstly impose joint obligations upon all States, secondly, impose 29. As mentioned above, there is insufficient space to delve into the theory and evolution of human rights law. Amongst the wideranging literature in this area, some of the texts that have informed this author include: Tomuschat, op. cit., (2003); Donnelly, op. cit., (2003); Bobbio, N., The Age of Rights, (Cambridge, 1996); Henkin, L., The Age of Rights, (New York, 1990). 30 Universal Declaration of Human Rights, adopted 10th December 1948, G.A. Res. 217A (III), U.N. GAOR, 3d Sess. (Resolutions, pt. 1), at 71, U.N. Doc. A/810 (1948), reprinted in 43 AJIL 127 (Supp. 1949) [hereinafter UDHR]. 31 Jhabvala, F., „Sovereignty and International Standards: Human Rights,‟ p. 301, from Snyder and Sathirathai, op. cit., (1987), pp. 295-296. 32 International Covenant on Civil and Political Rights, adopted 16th December 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21 st Sess., No.16, U.N., Doc. A/6316 (1966), 999 UNTS 171 (entered into force 23rd March 1976). [hereinafter ICCPR]. 33 International Covenant on Economic, Social and Cultural Rights, adopted 16th December 1966, G.A. Res. 2200 (XXI), U.N. GAOR 21st Sess. No. 16, U.N. Doc. A/6316 (1966), 993 UNTS 3 (entered into force 3rd January 1976). [hereinafter ICESCR] 34 At present there are seven treaty bodies. See http://www.ohchr.org 35 Dixon, M., Textbook on International Law, (3rd ed.), (London, 1990), p. 312. 36 See Rich, R., „The Right to Development: A Right of Peoples?,‟ pp. 39-41 from Crawford, J., (ed.), The Rights of Peoples, (Oxford, 1992). 37 Vasak, K., „A 30 year struggle: the sustained efforts to give force of law to the Universal Declaration of Human Rights,‟ UNESCO Courier, (November 1977), p. 29.. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 22 DOI: 10.2870/13421.

(23) obligations upon all the actors in the international arena and thirdly, they would be the rights of „peoples‟ as well as of individuals. The right to development has been declared one of the emerging „third generation‟ or „solidarity‟ rights.38 However, unlike first and second generation rights, third generation rights are not contained within an international human rights convention. According to Bobbio, there is also some support emerging for „fourth generation‟ rights in the area of biological research and genetic identity. 39. 1.3. The Gradual Convergence of Human Rights and Development. Whilst the global institutional structure of both human rights and development are products of the post-World War II climate, there was little convergence between development and human rights law until the end of the 1980s. Firstly, this arose from the widespread view in mainstream development thinking of development as a linear process of economic growth. Although the trends in economic thinking varied considerably until the 1980s, there was a widespread assumption that a trade-off between human rights and development was justified. In this respect, it was propagated that the fulfillment of respect for human rights should „wait‟ until a certain level of economic development had been achieved and this argument was used to justify the suspension of civil and political rights in the interests of development.40 This assumption was also based on the perception that development (particularly economic development) was a precondition for the achievement of human rights. For example, the „trickle down‟ approach claimed that the fruits of development would eventually reach the less well-off in society. In this light, the fulfillment of socio-economic rights was viewed as something that depended on the outcome of economic development and growth.41. These assumptions within mainstream development thinking were compounded by Cold War rivalries between the super powers, the US and the USSR. Whilst the former championed the so-called „first generation‟ civil and political rights based on individual 38. Ibid., pp. 29 and 32. Bobbio, op. cit., (1996), p. xi. 40 Donnelly, op. cit., (2003), pp. 196-198. 41 Ibid. 39. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 23 DOI: 10.2870/13421.

(24) liberty and freedom from arbitrary interference of the State, the latter promoted the „second generation‟ economic and social rights associated with protection of the material, social and cultural welfare of individuals. Although the US had already introduced human rights conditionality in its foreign policy in the 1970s,42 the dichotomy between first and second generation rights ensured that the subject of economic and social rights would be avoided in US policy. In addition, during the Cold War, development aid from the super powers to developing countries in Africa was motivated by geostrategic concerns. The bargaining power of African countries was relatively strong at this time, which guaranteed that their internal human rights situation was beyond discussion and any scrutiny of their human rights record by foreign donors would have been considered as an infringement of domestic sovereignty.. Although the convergence between these previously distinct domains was far from inevitable, there was a gradual consensus on the interlinkages between human rights and development within UN circles from the late 1980s onwards. This represented a break with the previous trade-off between human rights and development. Firstly, human rights became considered as a constituent element of the changing normative definition of development in UN circles. This was largely due to the emergence of support (albeit limited) for „third generation rights‟ through the 1986 Declaration on the Right to Development. The Preamble of the 1986 Declaration on the Right to Development describes development as “a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom.”43 Since the UN Declaration on the Right to Development (1986), development has become firmly entrenched within the realm of UN rights rhetoric and academic circles. However, it should be noted that the right to development belongs to the group of „third generation‟. 42. US Foreign Assistance Act of 1961 Public Law 87-195, 22 USC 2151n. Section 116 of the 1961 Act prohibits US foreign economic assistance to any country in which the government engages in a “consistent pattern of gross violations of internationally recognised human rights.” 43 See Declaration on the Right to Development, adopted 4th December 1986, G.A. Res. 41/128, GAOR, 41 st Sess., 97th plen. mtg., U.N. Doc. G.A./Res/41/128 (1986). [hereinafter, the Right to Development].. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 24 DOI: 10.2870/13421.

(25) rights, which in contrast to civil and political rights and economic, social and cultural rights, does not have the support of an international treaty for their protection.. Secondly, within mainstream development thinking, human rights were no longer viewed as incompatible with economic growth after the end of the Cold War and to some extent, they were considered as instrumental for the achievement of development objectives. For example, several World Bank studies revealed that there was a positive link between respect for human rights (defined as civil and political rights) and economic growth. This led to a new emphasis on governance reform within the policies of the international financial institutions, thus signaling the end of a long-standing trade-off between human rights and development. Equally, during the 1990s, human rights also became aligned with alternative approaches in development thinking, in particular, the human development approach through the notion of capabilities and freedoms.44 Finally, with the end of the Cold War, human rights became part of the „language of legitimacy‟ in international affairs.45 By this time, sub-Saharan Africa had lost much of its geostrategic significance and it became easier for external donors to raise sensitive issues relating to human rights. At this time, many OECD donors introduced political conditionality, which linked the disbursal of aid to respect for human rights, democracy and the rule of law. It also became acceptable to promote human rights per se as specific values through technical and financial assistance. Moreover, the previous dichotomy between economic, social and cultural rights, on the one hand, and the civil and political rights, on the other hand, also became less pronounced, although it should be acknowledged that the debate still continues over whether a hierarchy exists between both sets of rights. For example, the Vienna Conference and the Vienna Declaration and Programme of Action in 1993 referred to the link between human rights, democracy and development. This Declaration recognised that both sets of human rights were interdependent and mutually reinforcing and that resource constraints should not be used by nations to justify the failure to implement human rights.46 44. Sen, A., Development as Freedom, (Oxford, 1999); Ul Haq, M., Reflections on Human Development, (Delhi and Oxford, 1999). Donnelly, op. cit., (2003), p. 185. See chapter two of this thesis. 46 Vienna Declaration and Programme of Action, op. cit., para. 31. 45. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 25 DOI: 10.2870/13421.

(26) 1.4. Contextualising EU Development Cooperation Policy within the Nexus between Development and Human Rights. This thesis situates an analysis of European Union development policy within the context of the convergence of human rights and development. The case study of EU development policy and its relations with African, Caribbean and Pacific (ACP) countries was chosen as a means of gaining a practical insight into the debate on the integration of human rights in development policy. Within the EU-ACP framework, there is a strong legal basis for human rights conditionality and moreover, EU development policy is purported to be guided by the principles of human rights, democracy and good governance.47 Against the background described above, this thesis seeks to examine, on the one hand, the extent to which human rights have entered the EU development agenda at the macro policy level and on the other hand, to critically assess the practical application of human rights at a more micro level by considering the practice of human rights conditionality, political dialogue and technical and financial measures to support human rights. Whilst much of the literature on human rights and development focuses on the legal aspects of human rights conditionality, this thesis seeks to ascertain a more holistic view of the extent to which human rights have shaped EU development cooperation policy and the way in which the EU‟s commitment to promoting respect for human rights as a general objective of development policy is translated into practice.. Whilst the EU provides official development assistance to a range of countries and regions worldwide,48 the scope of this thesis deals exclusively with the relationship between the European Community and its Member States with the seventy-nine members of the African, Caribbean and Pacific (ACP) group. The case study of EU development cooperation policy and more specifically, cooperation with the ACP states is justified for the following reasons. Firstly, the EU has a strong legal basis for human rights in the 47. Article 177(2) of the EC Treaty. Consolidated Version of the Treaty Establishing the European Community in Foster, N., Blackstone’s EC Legislation 2005-2006, (16th ed.), (Oxford, 2005). 48 For the list of countries and regions, see EC Annual Report on External Assistance 2004, op. cit., Section 7 of the Financial Tables, Figure 3, pp. 152-154.. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 26 DOI: 10.2870/13421.

(27) acquis communautaire49 and it also has a relatively well-developed human rights policy in the context of developing countries. What does the legal framework for the EU‟s human rights policy in developing countries consist of? Since the Maastricht Treaty of 1992, there has been a firm legal basis for human rights as an objective of development within the first pillar of the European Community legal order.50 The legalistic approach to the role of human rights is a distinctive feature of EU development cooperation policy. Article 177(2) of the EC Treaty states that “Community policy in this area shall contribute to the general objective of developing and consolidating democracy and the rule of law, and to that of respecting human rights and fundamental freedoms.”. Within the context of EU relations with the group of ACP states, human rights, democratic principles and the rule of law are defined as the „essential elements‟ within Article 9 of the Cotonou Agreement. There are also detailed provisions for consultations and suspension in the event of alleged violations of the essential elements clause (Article 96). Good governance is included as a fundamental element and serious cases of corruption may give rise consultations and restrictive measures (Article 97). The EU‟s human rights policy is further elaborated upon in soft-law documents such as Communications of the Commission. This policy also includes measures to promote human rights (human rights activities, mainstreaming and political dialogue), along with the EU‟s 2001 policy of mainstreaming human rights in its relations with third countries.51 In light of the strong legal and normative basis for human rights conditionality, political dialogue and measures to promote human rights, the EU-ACP model provides an appropriate framework for analysing the practical links between human rights and development. A further insight into the EU‟s human rights policy in developing countries can be gained from secondary legislation, particularly the EU‟s 49. Articles 177-181 (ex 130u-130y), of the EC Treaty. This thesis deals exclusively with first pillar competences of the EU and the aid managed by the European Commission including EC Community Funds and the European Development Fund (EDF). Although development policy is a Community competence, the term EU development policy is used in this thesis (rather than EC development policy) for the purposes of simplification as this study also deals with EU unilateral regulations and the relationship with the ACP countries under the EU-ACP Partnership Agreement of 2000. [The scope of this thesis is limited to the first pillar, notwithstanding the fact that human rights conditionality cuts across pillar one and pillar two (Common Foreign and Security Policy (CFSP)) decisionmaking. See Bulterman, M., Human Rights in the Treaty Relations of the European Community: Real Virtues or Virtual Reality?, (Oxford and Gronigen, 2001), p. 6.] 50 Article 177(2) was inserted in the EC Treaty by virtue of the Treaty on European Union, signed in Maastricht on 7th February 1992, entered into force on 1st November 1993. [hereinafter, the Maastricht Treaty]. 51 Communication from the Commission to the Council and the European Parliament, „The European Union‟s role in promoting human rights and democratisation in third countries‟, COM (2001) 252 fin., 8 th May 2001.. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 27 DOI: 10.2870/13421.

(28) thematic Regulations, which provide a legal basis for activities in the area of human rights and democratisation in developing countries. These Regulations provide funding from the EU budget and are designed to complement the funding provided for human rights democratisation through the association and cooperation agreements with developing countries.52. Secondly, the case study of EU development cooperation policy is relevant due to its growing importance as a development agency – at least in quantitative terms – as exemplified by the large volume of aid managed by the European Commission. The combined resources of EU Member States and the European Community development aid amounts to more than half of global official development assistance.53 One fifth of EU development aid is managed by the European Commission, which includes European Community development funds and the European Development Fund (EDF) for the African, Caribbean and Pacific countries.54 The amount allocated for the ACP countries in the 9th European Development Fund (EDF) is €13.5 billion.55 Furthermore, in 2005, the Council of the European Union agreed to set a new collective target of 0.56% of GNI by 2010.56. With regard to funding for human rights and related elements such as democratisation, the rule of law and good governance, the EU (including the Member States) also rate highly from a global perspective. According to Youngs, it is difficult to obtain comparable figures for „political aid‟, however, he shows that the overall amount for EU 52. Council Regulation (EC) No. 975/1999 of 29th April 1999 laying down the requirements for the implementation of development cooperation operations which contribute to the general objective of developing and consolidating democracy and the rule of law and to that of respecting human rights and fundamental freedoms, [1999] OJ L 120, 8th May 1999. 53 European Commission, „External Assistance Reform: Four Years On (2000-2004),‟ April 2004, p. 1. Source: European Union, „Annual Report 2004 on the European Community‟s Development Policy and External Assistance,‟ (Luxembourg, 2004), p. 17. See also OECD European Community‟s Aid at a Glance. Source: http://www.oecd.org/dataoecd/61/24/1875307.gif 54 The European Commission manages the Community budget, the European Development Fund (EDF) and assistance under the Overseas Association Decision to the Overseas Countries and Territories. Council Decision 822/2001 on the association of the overseas countries and territories with the European Community [2001] OJ 314/1. 55 Internal Agreement between Representatives of the Governments of the Member States, meeting within the Council, on the Financing and Administration of Community Aid under the Financial Protocol to the Partnership Agreement between the African, Caribbean and Pacific States and the European Community and its Member States signed in Cotonou (Benin) on 23 rd June 2000 and the allocation of financial assistance for the Overseas Countries and Territories to which Part Four of the EC Treaty applies, [2000] OJ L317, 15th December 2000, pp. 355-372. 56 Europa Press Release, „European Commission welcomes Council‟s decision to set new ambitious targets for Development Aid‟, IP/05/598, 24th May 2005. This will amount to €20 billion of the ODA of the European Commission and the EU Member States collectively. See Luxembourg Presidency Conclusions, GAERC, 2660th Sess., 23rd-24th May 2005, p. 22. The ten new Member States that acceded to the EU in May 2004 agreed to 0.17% GNI by this date, whilst the other fifteen Member States agreed to reach the threshold of 0.51%.. Sheehy, Orla (2007), The Constituent and Instrumental Role of Human Rights in Development Policy. A case study of European Union (EU) relations with the group of African, Caribbean and Pacific (ACP) states European University Institute. 28 DOI: 10.2870/13421.